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EXHIBIT 10.9
TECHNICAL, MANAGEMENT AND ADMINISTRATIVE SERVICES AGREEMENT
THIS TECHNICAL, MANAGEMENT AND ADMINISTRATIVE SERVICES AGREEMENT (the
"Agreement") is made and effective as of May 27, 1999 between XXXXXXXX
INTERNATIONAL COMPANY, a corporation organized under the laws of Delaware
("WIC") and Xxxxxxxx Communications Group, Inc., a corporation organized under
the laws of Delaware ("WCG").
WHEREAS, WIC or an affiliate of WIC was the owner of Xxxxxxxx International
Ventures Company, a Delaware corporation, Xxxxxxxx Australian Telecom Limited, a
Cayman Islands company and Xxxxxxxx International AR Limited, a Cayman Islands
company (the "International Companies"); and
WHEREAS, under and pursuant to that certain Agreement and Plan of
Reorganization dated as of May 27, 1999 by and among WIC, Xxxxxxxx Holdings of
Delaware, Inc. ("WHD") and Xxxxxxxx International Telecom Limited ("WITL"), WIC
transferred the stock of the International Companies to WHD, which in turn
transferred the stock of the International Companies to WCG or a subsidiary
thereof; and
WHEREAS, prior to the transfer of the International Companies to WCG, WIC
provided certain technical, management, administrative, and other services
("Services") with respect to the operations of the International Companies; and
WHEREAS, WCG desires that WIC from and after the date hereof continue to
provide such Services with respect to the International Companies and WIC
desires to do so.
NOW, THEREFORE, in consideration of the promises and respective
representations, warranties, covenants, and agreements herein contained, the
parties hereby agree as follows:
1. EXTENT OF SERVICES. WCG hereby requests, and WIC hereby agrees, that
various employees of WIC shall from time to time provide, to and for the benefit
of WCG the following services: (i) advising and making recommendations to WCG
regarding the design, engineering and management of the Projects, (ii)
assistance to and coordination and oversight of consultants, contractors,
subcontractors, agents and employees of WCG and (iii) such other technical,
management, administrative and oversight services with respect to the Projects
as are required by the Project Agreements and as the parties may from time to
time agree.
2. COMPENSATION. As consideration for the Services, WCG shall compensate WIC
monthly for all costs and expenses incurred by WIC in performing the Services,
which compensation shall in no event include a profit margin.
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3. INVOICING. WIC shall invoice WCG for all charges hereunder on or before
the 15th of each month for Services performed in the preceding month. Payment
shall be due within 15 days of receipt of WIC's invoice.
4. QUALITY. WIC, in performing the Services hereunder, shall use all
commercially reasonable efforts to assure that such Services are provided with
no less than that degree of quality and care as WIC applies in its own affairs.
5. CONFIDENTIALITY. WIC undertakes on behalf of itself and its affiliates
that it shall keep confidential and shall not, without prior written consent of
the party to whom the information relates, disclose to any person other than its
respective employees, agents or affiliates requiring such information for
purposes of the performance of this Agreement, any confidential, proprietary or
trade secret information obtained in connection with or as a result of the
performance of this Agreement. In performing its obligations under this Section
5, WIC shall apply such standards of confidentiality as it applies generally in
relation to its own confidential information. WIC shall use all reasonable
efforts to ensure that its employees and agents and those of its affiliates
observe such confidentiality.
6. INTELLECTUAL PROPERTY RIGHTS. Unless otherwise specifically described in
writing, any intellectual property acquired by WIC through the Services shall be
used by WIC for purposes of providing Services to WCG. Furthermore, WCG shall
use its best efforts to protect any of WIC's intellectual property provided or
licensed to WCG pursuant to this Agreement.
7. RECORDS. WIC shall maintain at its principal offices such records and
accounts supporting the costs and expenses incurred in performing the Services
as are consistent with recognized business practice, which records and accounts
shall be available for inspection by representatives of WCG and its auditors at
all reasonable times upon reasonable notice.
8. INDEPENDENT CONTRACTOR. WIC is and shall remain an independent contractor
in its performance of this Agreement. Neither party to this Agreement, nor any
person engaged in any work or services at the request of such party, shall be
deemed a partner, employee, or agent of the other party. Neither party to this
Agreement shall have any right or authority, and shall not attempt, to enter
into any contract, commitment or agreement to incur any debt or liability, of
any nature, in the name of the other party.
9. WIC EMPLOYEES. The Services to be provided hereunder are provided by WIC
to, and at the request and for the benefit of, WCG and the various employees of
WIC engaged from time to time in performing the Services shall under no
circumstances be, or be deemed to be, at any time performing such Services as
employees of WCG or under the control or supervision of WCG. WIC shall have full
and exclusive liability for the payment of such employees'
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compensation and for the payment of all taxes, termination, retirement, or other
benefits, pensions, and other obligations or liabilities of any nature now or
hereafter imposed upon employers by the U.S. government in respect of such
employees, and WIC shall make such payments and shall make and file all reports
and returns and do all other things necessary to comply with the law imposing
such taxes, contributions, withholdings or other payments.
10. FORCE MAJEURE. Except for the payment of money when due, should WIC be
unable, in whole or in part, to perform its obligations under this Agreement by
reason of force majeure, WIC shall be excused from performance to the extent it
is affected by such force majeure. If WIC is affected by force majeure, WIC
shall use its best efforts to remedy the impediment to its performance. The term
"force majeure" shall mean any cause which is not within the control of WIC or
which by the exercise of due diligence, WIC is unable to prevent or overcome.
11. ARBITRATION. In case a dispute arises from the interpretation or
performance of this Agreement, the parties shall use their best efforts in order
to resolve such dispute in an amicable manner. If, such efforts are not
sufficient, any disputes arising out of or relating to this Agreement shall be
resolved exclusively and finally by Arbitration. The Arbitration shall be
conducted and heard by three (3) arbitrators in accordance with the Rules of the
American Arbitration Association with the laws of the State of Oklahoma applied
as the substantive law governing the Agreement. Any decision or award of the
arbitral tribunal shall be final and binding upon the parties. Judgment for
execution of any award rendered by the arbitral tribunal may be entered by any
court of competent jurisdiction. To the extent permitted by applicable Law, any
rights to appeal from or to cause a review of any such award by any court or
tribunal are hereby waived by the parties.
12. INDEMNIFICATION. WCG shall indemnify and hold harmless WIC, its parent,
subsidiary, and affiliated companies and the directors, officers, shareholders,
employees and agents thereof from and against any and all liability, loss and
expense, including attorneys' fees and costs, arising from injury or death to
persons or damage to property or violations of any laws or regulations related
to performance of the Services, except to the extent such loss, injury, death or
damage or violations of any laws or regulations related to the performance of
the Services is attributable to the gross negligence or acts and omissions of
WIC in the performance of such Services.
13. INSURANCE. WCG shall maintain or WIC shall carry, at the expense of WCG,
the following insurance for the International Companies: (a) Workers'
Compensation insurance (b) Comprehensive General Liability insurance (c)
Comprehensive Automobile Liability insurance (d) Excess or Umbrella Liability
coverage
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14. TERM AND TERMINATION. This Agreement shall become effective as of the
date hereof and shall continue in effect until terminated by the agreement of
the parties or by notice in writing by either party to the other party.
15. MISCELLANEOUS.
15.1. NOTICES.
(a) All notices, requests and other communications under this Agreement
shall be in writing and delivered in person, sent by certified or registered
mail, postage prepaid, or sent by facsimile or express courier to the respective
addresses set forth below or such other address as either party may notify the
other party in writing.
IF TO WIC:
ADDRESS:
SUITE 0000
XXX XXXXXXXX XXXXXX
XXXXX, XX 00000
ATTN: XXXX XXXXXXXXX, XX.
FACSIMILE: (000) 000-0000
IF TO WCG:
ADDRESS:
XXX XXXXXXXX XXXXXX
XXXXX, XX 00000
ATTN: XXXXXX X. XXXXXX
15.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the parties with respect to the services contemplated hereby,
and supersedes all written or oral negotiations, representations, warranties,
commitments, offers and other understandings prior to the date hereof. This
Agreement may be amended or varied only by a written instrument executed by the
parties hereto.
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15.3. SEVERABILITY. If any provision hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of future
legislative action, such holding or action shall be strictly construed and shall
not affect the validity or effect of any other provision hereof.
15.4. ASSIGNABILITY. This Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the parties hereto; provided,
however, that except as otherwise provided herein, neither this Agreement nor
any right or obligation hereunder shall be assignable by either party without
the prior written consent of the other party.
15.5. CAPTIONS. The captions of the various Articles and Sections of this
Agreement have been inserted only for convenience of reference, and shall not be
deemed to modify, explain, enlarge or restrict any provision of this Agreement
or affect the construction hereof.
15.6. REMEDIES CUMULATIVE. Except as otherwise expressly limited herein, the
rights, powers and remedies given to any party by this Agreement shall be in
addition to all rights, powers and remedies given to that party by any statute
or rule of law. Any forbearance or failure or delay in exercising any right,
power or remedy hereunder shall not be deemed to be a waiver of such right,
power or remedy, and any single or partial exercise of any right power or remedy
shall not preclude the further exercise thereof or be deemed to be a waiver of
any other right, power or remedy.
15.7 CONSEQUENTIAL DAMAGES. In no event shall WIC be liable to WCG whether
by way of indemnity or in contract or in tort (including negligence) for any
indirect, special, or consequential loss or damages or loss of profit, loss of
use, loss of production or loss of contract or for any financial or economic
loss whatever and howsoever caused.
15.8. GOVERNING LAW. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of Oklahoma, without giving
effect to the conflict of law provisions thereof. The parties shall comply with
all applicable laws and regulations, including, but not limited to, the Foreign
Corrupt Practices Act.
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IN WITNESS WHEREOF, the parties hereto have executed this Technical,
Management and Administrative Services Agreement as of the day and year first
above written.
XXXXXXXX INTERNATIONAL
COMPANY
BY: /s/ XXXX XXXXXXXXX
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NAME: Xxxx Xxxxxxxxx
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TITLE: Senior Vice-President, International
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XXXXXXXX COMMUNICATIONS
GROUP, INC.
BY: /s/ G.L. BEST
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NAME: G.L. Best
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TITLE: Vice-President
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